Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McMicking v Commissioner of Police, NSW Police Force [2014] NSWCATOD 95 Hearing dates: 27th May 2014 Decision date: 27 August 2014 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: Decision under review set aside Catchwords: Corrupt conduct, fit and proper, public interest Legislation Cited: Civil and Administrative Tribunal Act 2013 Independent Commission Against Corruption Act 1988 Security Industry Act 1997 Security Industry Regulation 2007 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] Brandusoiu v Commissioner of Police, NSW Police Force [2011] NSWADT 57 Brandusoiu v Commissioner of Police NSW Police Force (No. 2) (GD) [2012] NSWADTAP 6 Clugston -v- Commissioner of Police [1999] NSWADT 112 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police and Toleafoa [1999] NSWADTAP 9 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; (1979) 24 ALR 577 FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11]. Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156 Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 Lal -v- Director-General, Department of Transport [2001] NSWADT 74 Little -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 237 Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169 Naylor v Commissioner of Police, NSW Police Force[2014] NSWCATOD 43 O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130 Saadieh v Director General, Department of Transport [1999] NSWADT 68 The Taxpayer and the Commissioner of Taxation [1996] AATA 417 Waddell v Commissioner of Police, NSW Police Service [2001] NSWADT 112 Category: Principal judgment Parties: David Andrew McMicking (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel I Lloyd QC and T Hickie (Applicant) Churchill Lawyers (Applicant) C Zoppo, NSW Police Force (Respondent) File Number(s): 1420042 reasons for decision Background 1David McMicking was issued with a class 2BC security licence on 10th of February 2009. The Commissioner of Police determined to revoke this licence on 3 October 2013. The reason for this decision was that the Independent Commission Against Corruption (ICAC) had found that Mr McMicking had engaged in corrupt conduct. The Commissioner of Police also considered that Mr McMicking was not a fit and proper person and that was not in the public interest for Mr McMicking to continue to hold a security licence. 2Mr McMicking obtained his qualifications as a locksmith having commenced as an apprentice in 1983. He had held a locksmith licence since 1986. He held a Security Operator's licence from 1990 to 1993. This was subsequently replaced by another licence. His 2BC security licence was issued to him in 2007 and it was due to expire on 23rd March 2014. 3He has been employed for a total of 31 years in the security industry of his 33 years in the workforce. He was employed by Kings Security for a total of 24 years as a security business development officer and as an accounts manager since 1992. Decision under Review 4The Internal Review statement of reasons dated 9th December 2013 sets out that the basis of the revocation order is the finding of the ICAC in its report published on the 26th of September 2013. The report was entitled "Report on allegations of corrupt conduct in the provision of security products and services by suppliers, installers and consultants." The internal Review reasons stated: "Your client was named in this report and found to have engaged in corrupt conduct by agreeing with Mr Huskic, in 2010, to submit two dummy quotes to the NSCCAHS for the Gosford hospital car park upgrade, knowing Mr Huskic would represent them as genuine quotes, and authorising the submission of these quotes". 5The tribunal understands that on 4 May 2010 Mr Charlie Diekman, Mr McMicking's employer sent a quotation from MJH Security Installation to Mr McMicking. It was alleged before ICAC that Mr McMicking had used this to provide two dummy quotes. The matter was investigated by ICAC and a report released in September 2013. On 23rd of October 2013 notification of revocation of licence was served on Mr McMicking. 6The Commissioner revoked the class 2BC licence for the following reasons: * The Applicant is not suitable to hold a licence because the Applicant was involved in corrupt conduct under section 16(3) of the SIA; * Secondly that the Applicant is not a fit and proper person to hold a licence of the type that he held under section 15(1) (a) of the SIA; and * Thirdly, that it is against the public interest for the Applicant to continue to hold a security licence in terms of section 26(1) (d) of the SIA and clause 29 of the Security Industry Regulation 2007 (SIR). The Relevant Law 7The relevant law is the Security Industry Act 1997 (SIA). Section 26 (1A) of the SIA provides that the Commissioner must revoke a licence where he is satisfied that if the licensee were applying for a new licence the application would be required by the SIA to be refused. 8Section 16 (3) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the Applicant is not suitable to hold a licence because the Applicant has been involved in corrupt conduct. 9Section 15 (1) (a) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the Applicant is not a fit and proper person to hold the class of licence sought by the Applicant. 10Section 26 (1) (d) of the SIA prescribes the licence may be revoked that any reason prescribed by the regulations. Clause 29 of the SIR provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it. 11Mr McMicking's class 2BC licence authorised him to perform the following security activities as set out in section 12 of the SIA: * Class 2B - Security seller - authorises the licensee to sell, and provide advice in relation to security equipment and to sell the services of persons to carry on any security activities. * Class 2C - Security equipment specialist - authorises the licensee to sell, install, maintain, repair, and service, and provide advice in relation to, security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith. The Hearing 12Section 29(1) (a) of the SIA and s.30 of the Civil and Administrative Tribunal Act 2013 (CATA) give NCAT the power to review a decision to revoke a licence. In exercising its jurisdiction the Tribunal's task is to determine whether the Commissioner's decision is the correct and preferred decision having regard to all the relevant factual material and any applicable written and unwritten law. The hearing is a review of the original decision and the NCAT may take into account material not previously before the decision maker. See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; (1979) 24 ALR 577 13The Respondent tendered findings from the ICAC investigation dated September 2013 and relied upon the Agreed Statement of Facts, the section 58 documents and sought to tender further documents. 14The Applicant relied upon the Agreed Statement of Facts, a statement of Mr McMicking dated 10th April 2014 which attached 9 character references and submissions filed on his behalf. Mr McMicking did not give sworn evidence before the tribunal. 15At hearing, Mr McMicking was represented by Queen's and junior counsel. Mr Zoppo represented the Respondent. Evidentiary Issues 16A number of evidentiary issues were raised by the parties. 17The Respondent sought to tender the following documents: * The full ICAC report pages 1 to 86 dated September 2013; * The ICAC brief of evidence; * Statements of seven witnesses to ICAC; * Assorted documents; * An affidavit from a staff member at the National Bank; * Folder two of two headed Dissemination of Material Operation Tilga; and * Extracts from transcript of ICAC evidence given by Diekman, Roche, Poller, Paul, Huskic, Creary, Eschbank, Kuiper, Byrne and Hingerty. 18The Applicant made a general objection to the tender as the large volume of material had been served very shortly before the hearing, giving little opportunity for the Applicant to consider the material. 19The Applicant also made specific objections to certain documents. Some of these objections are set out below. 20The tribunal determined to accept the tender of the material as a whole, noting the Applicant's objections as to notice. Further the tribunal has not taken account of any material falling within the privilege of section 37 of the ICAC Act. 21The first ground set out in Mr McMicking's application for review submitted that the discretion exercised by the Commissioner had miscarried by the Commissioner taking into account the details of the ICAC report. This was not expanded upon further in this aspect of the Applicant's submissions. 22The Applicant's third ground submitted that the Commissioner had given no weight to the fact of the declaration of objection made by the ICAC Commissioner under section 38 of the ICAC Act. This declaration meant that any of the Applicant's evidence before ICAC was privileged pursuant to section 37 (3) of the ICAC Act. The Applicant referred the tribunal to the matter of Waddell v The Commissioner of Police, New South Wales Police Service [2000] NSW ADT 144 at paragraphs 32 to 35. In that matter the tribunal noted that although the tribunal must take into account any relevant factual material in determining an application for review, it cannot have regard to material which is not admissible by virtue of the valid applicable law such as section 37 of the ICAC Act. 23Accordingly the tribunal has not relied on Mr McMicking's evidence before the ICAC in reaching its conclusions. 24The tribunal has also not taken into account any evidence before ICAC commenting on the evidence of the Applicant before ICAC. In the matter of The Taxpayer and the Commissioner of Taxation [1996] AATA 417 Senior Member Block of the Administrative Appeals Tribunal said at paragraph 4 "to admit the report, which comments on the evidence of the applicant, where the evidence itself is not admissible because of the provisions of section 37(3) of the ICAC act, would in the view of the tribunal produce a result which is unfair to the applicant, in that it would admit (albeit indirectly) references to the inadmissible evidence of the applicant." 25The tribunal notes that the evidence otherwise contained in the ICAC report and the extracts of transcript focuses on other witnesses before ICAC including other employees of Kings Security. There is some mention of matters relating to Mr McMicking concerning a trip to Las Vegas and the purchase of a motor scooter and motorbike clothing which may have been to the benefit of Mr Huskic. The Applicant objected to the tender of this material. No evidence was led through witnesses for the Respondent as to the significance of any of these matters as they related to Mr McMicking. The Applicant had chosen not to give evidence before the tribunal. Accordingly the tribunal has drawn no conclusions from this material. 26The Respondent referred to the Applicant, Mr McMicking's failure to give evidence before the tribunal and the decision of the ADT Appeals Panel in Brandusoiu v Commissioner of Police NSW Police Force (No. 2) (GD) [2012] NSWADTAP 6. In this matter the Appellant, Mr Brandusoiu's security licence had been revoked by the Commissioner of Police after ICAC made a corruption finding against him with recommendation that he be prosecuted for serious offences. The tribunal Appeals Panel noted that Mr Brandusoiu had not availed himself of the opportunity to give evidence before the tribunal in order to counter inferences that arose from the ICAC matters. He relied entirely on the submissions put on his behalf by counsel. The tribunal Appeals Panel accepted that : "he saw himself as having difficulty in giving evidence before the tribunal given the possibility of criminal charges and that he was entitled to exercise the privilege against self-incrimination. The administration of occupational licences sits in a different part of the legal system to a criminal trial. Persons who hold licences have as we see it, the duty of candour in relation to matters of concern to the administrator (and, on review, the review tribunal exercising the powers of the administrator).The Appellant's disinclination to give evidence to this tribunal must be counted against him." 27The tribunal notes that Mr Brandusoiu did not rely on the section 37 of the ICAC Act privilege in declining to give evidence to the tribunal in relation to the revocation of his licence. In this matter Mr McMicking has relied on the section 37 privilege. In Mr McMicking's case, ICAC has not determined to refer Mr McMicking to the DPP for consideration of prosecution although it did so in Mr Brandusoiu's matter. Further Mr Brandusoiu had a number of other allegations concerning his conduct, including criminal convictions to his record. There are no other matters of concern relating to Mr McMicking's conduct. 28In these circumstances, this tribunal distinguishes Mr McMicking's failure to give evidence from that of Mr Brandusoiu and the consequent conclusions drawn by the Administrative Decisions Appeals Tribunal Panel about this failure to give evidence. Agreed Statement of Facts 29The parties provided the tribunal with an Agreed Statement of Facts summarised by the tribunal as follows. The Applicant had been employed by Kings Security Group for a period of approximately 20 years. He held a class 2BC security licence that was due to expire on 23 March 2014. The statement set out the security activities authorised by a class 2BC licence under section 12. 30ICAC had investigated allegations of widespread corrupt conduct in the provision of security services to public authorities in 2012 to 2013. The allegations primarily concerned the Kings Security Group Pty Ltd, its directors, security industry consultants and public officials. 31The investigation included an examination of the circumstances behind the awarding of the contract to Kings Security to provide security services in upgrading the Gosford Hospital car park in 2010. The upgrade involved the supply and installation of boom gates, the upgrading of parking meters and associated work. Mr Huskic, an employee of NSCCAHS was the project manager and his role involved obtaining quotes for the work. The NSCCAHS procedure required competitive tendering with a minimum three quotes to be obtained. Mr Huskic had obtained quotes from Kings Security and Eco-Traffic solutions in 2010. On 4 May 2010 Mr Diekman emailed Mr McMicking a quote from MJH Security installations unrelated to the upgrade at Gosford hospital. 32ICAC found a quote in identical terms on Kings' computer server. A further quote on MJH letterhead dated 12th of May 2010 was submitted to the NS CCAHS. This quote was for the supply of boom gates and access control equipment to the car park project in the amount of $174,500. ICAC found an identical quote on the Kings' computer server. The total price of the 2 MJH quotes was higher than Kings' quote. 33Mr Diekman agreed that the MJH quote dated fourth of May 2010 was false. He had been asked by Mr Huskic to provide another quote as Mr Huskic did not have time to get a third quote. Mr Huskic told Mr Diekman to ensure that the quote was higher than Kings' quote. Mr Diekman knew the false quote would improve Kings' chances of winning the contract. 34The CEO of the security company previously trading as MJH confirmed that neither of the quotations was genuine and that he had not given Mr Diekman or Mr McMicking permission to submit the quotes. 35Mr Huskic recommended the acceptance of the Kings' quote and the contract was awarded to Kings. 36ICAC found that Mr Huskic and Mr Diekman engaged in corrupt conduct by Mr Huskic requesting that Mr Diekman arrange for the creation of dummy quotes and using the quotes knowing they were false. 37ICAC found that Mr McMicking had engaged in corrupt conduct as he had received a letterhead and manipulated the letterhead and created two dummy quotes on the instructions of Mr Diekman. The ICAC Commissioner was of the opinion that consideration should be given to obtaining the advice of the DPP as to whether or not Mr Huskic and Mr Diekman should be prosecuted under the criminal law- but not Mr McMicking. Statement of Mr McMicking 10th April 2014 38Mr McMicking's statement of 10 April 2014 outlined his history in the security industry, his brief departure from the industry to teach English in Japan and his continued employment by Kings Security since 1992. He set out his background in relation to community sports as a volunteer. He has no prior criminal history nor any breaches in relation to his security licence prior to this event. 39He is married with two children aged eleven and nine. He has been stood down by his employer pending the resolution of the current proceedings. If he is unable to re-obtain his licence he will be unable to work. He has no other qualifications. He relied upon submissions made in his application seeking restoration of his licence. 40His statement did not touch on the facts of or his attitude to the ICAC matter. It did not deal with how he would behave in the future. 41The statement attached nine character testimonials. Character testimonials 42Mr Eric Traynor has known Mr McMicking since February 2001 from working in the same industry. He considers that what has occurred is totally out of character for Mr McMicking whom he had always found to be honest and trustworthy. He had never heard of a complaint of any description about him and recommends him as a trustworthy, honest and dependable person. He is confident that were he to have the decision set aside he will not be subject again of the Commissioner of Police having to revoke this licence. He believes that Mr McMicking will continue to work hard and honestly into the future as he always has. 43Stephen Green has known Mr McMicking professionally and provided a reference dated 26th of February 2014. Mr McMicking had been contracted by Mr Green to provide security design and construction consultancy services. He comments that the reasons for revocation of Mr McMicking's security licence are out of character as Mr McMicking's integrity had been at the forefront of their business relationship. He is confident that the issues would not be repeated in the future and would continue his relationship with Mr McMicking should his security licence be reinstated. 44Glenn Bradley provided a reference dated 20th of February 2014. He had known Mr McMicking since their high school years and they had been each other's best man at their weddings. He considered the behaviour completely out of character and could not recall a time when his honesty integrity and loyalty or decision-making had been called into question. He saw these values as being an integral part of Mr McMicking's day-to-day life in the upbringing of his children. He noted the respect that Mr McMicking carried with his industry peers and he was confident that should he regain his security licence, Mr McMicking would not be subject of any further investigations. He saw him as a lifelong friend of unquestionable ethics. 45Peter King provided a reference dated 13th of February 2014. He had been a previous owner of Kings Security and had employed Mr McMicking in 1989. Mr McMicking had been a loyal servant of the company and helped build it from relatively small beginnings. Mr McMicking is a man of integrity trustworthy, honest and reliable. He was astounded that Mr McMicking had been found to be acting in a way deemed to be corrupt. He was certain that there would be no further matter relating to Mr McMicking before the Commissioner of Police. 46Colin Finkelde provided a reference dated 13th of February 2014. He had known Mr McMicking for over 15 years both personally and in business. He had proven to be a trustworthy loyal friend who had assisted him through a number of difficult years. He was honest, reliable and of excellent character and well regarded by his many friends. He had always been extremely professional when Mr Finkelde had required his professional services. The ICAC matters were totally out of character and an event he deeply regrets. He considered that Mr McMicking would never allow itself to be in the position again were his licence to be reinstated. 47Ms Lucy Flanagan provided a reference dated 16th of February 2014. She had known Mr McMicking for 19 years through his community work as a volunteer with junior soccer and surf lifesaving. Mr McMicking had impressed her with his honesty, thoughtfulness and reliability. She trusted him and valued him highly as a friend. She was confident that the reasons for the adverse finding were totally out of character for him that there would never be a reason for further revocation of this licence in the future. 48Rod Wearing, also a 2BC security licence holder, provided a reference dated 26th of February 2014. He had known Mr McMicking both personally and professionally since 2005. He saw Mr McMicking as a diligent and thorough security professional. He considered Mr McMicking to be a person of high character who showed integrity and respect in all his business dealings. He was a dedicated family man and always willing to help others in need. The ICAC matters were out of character and not representative of his normal business acumen. 49John Wright provided a reference dated 13th of March 2014. He had known Mr McMicking as a golfing partner and thought that the ICAC matters were out of character to the honest and straightforward person he had known over many years. He considered that over the past 12 months Mr McMicking had had to reassess priorities and come to terms with the decision and the consequences of his actions. Were he to retain his security licence he would be a much more focused and aware adviser. The ICAC matters were completely out of character. He thought he would be a model practitioner if he could return to his chosen profession. 50Paul Brooks provided a reference dated 12th of February 2014. He is the managing director of a manufacturer and distributor of CCTV products. He had known Mr McMicking since late 2010 and worked with him on several projects. He did not condone any form of corruption - firmly believing it was both wrong and detrimental to the community at large. The news had come as a complete and total shock to him. Mr McMicking was a respectable person who is considerate and courteous with all he comes into contact with. He is an intelligent and kind person as well as a regular and grounded man who would not hesitate to offer a hand to anyone in need. He surmised that it was a serious lapse in judgement and extremely out of character for Mr McMicking to be embroiled in the ICAC matter. He considered that Mr McMicking had amassed a wealth of knowledge and experience in the security industry and he believed that the community would be significantly worse off if Mr McMicking were unable to execute his duties in a professional capacity. He was sure that he would go on to be a valuable member of the security industry were his licence to be returned and his active participation in the industry would be a constructive reminder to all that high standards must always be maintained. Applicant's Submissions 51The Applicant provided written submissions to the tribunal dealing with five grounds for the Applicant's application for review. 52The first ground was that the Commissioner had miscarried in his exercise of his discretion by taking into account the details of the ICAC report dated 26 of September 2013. In the alternative if the Commissioner had not miscarried in the exercise of his discretion by taking into account the details of the ICAC report, the Commissioner had failed to undertake the second stage of the decision-making process required under section 16 (3) of the SIA. The second step after establishing there had been a finding of corrupt conduct is then to form an opinion as to whether because of the ICAC finding the Applicant is not suitable to hold a licence. See Clugston v Commissioner of Police [1999] NSW ADT 112, at paragraph 17. 53The second ground of the application was that the Commissioner had given insufficient weight as to the low level of involvement by the Applicant in corrupt conduct. The Applicant submitted that the extent of the Applicant's conduct as set out in the ICAC finding at page 57 was in agreeing with Mr Huskic to submit two dummy quotes knowing that they were false and that Mr Huskic would represent them as genuine quotes. Further at page 58 of the ICAC report the ICAC Commissioner determined that the matter should not be referred for consideration of prosecution of Mr McMicking for any criminal offence. This was in contrast to the Commissioner's opinion in relation to the involvement of Mr Huskic and Mr Diekman. The Commissioner took the view that consideration should be given to prosecuting Mr Huskic and Mr Diekman. 54The third ground of the application for review was that the Commissioner gave no weight to the fact that the evidence given by the Applicant at the ICAC hearing was provided subject to a declaration of objection made by the ICAC Commissioner under section 38 of the ICAC Act. This declaration meant that the evidence given was privileged pursuant to section 37 (3) the ICAC Act. This meant that such evidence was not admissible against the person in any civil or criminal proceedings or in any disciplinary proceedings. The Applicant noted that while there was other admissible evidence against Mr Huskic and Mr Diekman the report made no such statement against the Applicant Mr McMicking. 55It was the Applicant's submission that the consequences of this was that when forming an opinion under section 16 (3) as to whether or not the Applicant was not suitable to hold a licence because the Applicant was involved in corrupt conduct, the Commissioner needed to give weight to firstly the fact that the evidence given by the Applicant at the ICAC hearing was privileged and secondly the prior excellent good record and reputation of the Applicant. 56The fourth ground of the application was that the Commissioner had given insufficient weight in relation to the applicable standard of proof. The Applicant submitted that the Commissioner in forming his opinion under section 16(3) should have taken into account the fact that the Applicant had not been found to be corrupt on the criminal standard and that the ICAC report stated that the advice of the DPP should not be obtained in relation to prosecution of Mr McMicking. 57The fifth ground was that the Commissioner had given insufficient weight to the prior excellent good record and reputation of the Applicant. The Applicant submitted this on two bases. First of all that the Commissioner had not taken the two-step process required under section 16(3) and therefore had not taken into account the Applicant's prior excellent record in determining whether or not the Applicant is suitable to hold a licence. 58Further the Commissioner should have taken into account the Applicant's prior excellent good record and reputation when applying the fit and proper test and the public interest test. There had been no mention in the statement of reasons of the Commissioner considering the Applicant's prior excellent good record and reputation when considering whether or not the Applicant is fit and proper or whether it was in the public interest for the Applicant to have a licence. 59An aspect of these considerations was that Mr McMicking agreed to draft two dummy quotes at the request of his employer. This action did not arise from Mr McMicking's holding of a security licence and therefore the drafting of the two dummy quotes was totally unrelated to Mr McMicking's class 2BC security licence. This meant that it did not affect his fitness and propriety to hold the licence. Respondent's Submissions 60The Respondent's submissions relied on the Agreed Statement of Facts establishing the corrupt conduct. 61The Respondent referred to the provisions of the SIA. Section 15 (1) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the Applicant is a fit and proper person to hold the class of licence sought. The Respondent then referred to the mandatory and discretionary powers of the Commissioner under the SIA to revoke a licence 62Section 26 (1) (a) provides that the Commissioner must revoke a licence when the Commissioner is satisfied that if the licensee were applying for a new licence, the application would be required by the SIA to be refused. 63Section 16 (3) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the Applicant is not suitable to hold a licence because the Applicant has been involved in corrupt conduct. The Respondent agreed that this involved a two-step process. 64Section 15(1) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the Applicant is a fit and proper person to hold the class of licence sought by the Applicant. Section 15 (3) of the SIA provides that the Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of a licence would be contrary to the public interest. 65The Respondent submitted that the evidence established that the Applicant was involved in corrupt conduct as defined in the ICAC Act. The Applicant did not dispute that he had created two dummy quotes. The conduct of the Applicant as found by ICAC establishes fraudulent or dishonest conduct. 66The Respondent referred to the objects of the SIA. These include the regulation of "security activities" so that licences are conditional on the overriding need to ensure public safety and the protection of property. These considerations are relevant also in determining whether a person is fit and proper person. 67In these respects the Applicant had demonstrated his unsuitability to hold a class 2BC licence by his willingness to perpetrate a deception on the NSCCAHS by creating two false quotes knowing that they would be used in the tender process for the Gosford security upgrade. The Respondent submitted that the conduct was carried out in the course of the Applicant carrying out a "security activity" as authorised by his class 2BC licence. He had provided quotes and advice to people seeking security services. This fell within class 2B activities which included "to sell, and provide advice in relation to, security equipment" and class 2C "to sell, install, maintain, repair and service and provide advice in relation to, security equipment (including electronic security equipment and barrier equipment) and to act as a locksmith." Fit and proper 68The Respondent relied on the meaning of fit and proper as determined by the High Court in the matters of Hughes and Vale and Australian Broadcasting Tribunal v Bond and in the matter of Sobey. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 and Hughes and Vale Pty Ltd v State of NSW [1955] HCA 28; (1955) 93 CLR 127 and Sobey and Commercial and Private Agents Board 20 SASR 70 Walters J. This meant that the Applicant must show honesty, knowledge and ability as it related to working in the security industry. 69The Respondent submitted that an even higher standard is applicable to licensees within the security industry because of the special role it plays in ensuring public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe. 70The Respondent referred to the decisions of the ADT in FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88 New South Wales Police and Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT6. In Haining, the President of the Tribunal made the following comments in the context of the security industry: "Whether a person is fit and proper to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislative to regulate the industry." 71The Respondent referred to the objects of the SIA which was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard. See Feuerstein v Commissioner of Police, NSW Police [2007] NSW ADT 114 at 11. Implicit in the objects of the SIA is to confirm security and investigative activities as being a privilege that is conditional on the overriding need to ensure public safety and the protection of property. In this context the tribunal must be satisfied that there is a low level of risk to safety and property. 72The Respondent referred to the matter of Robinson v Commissioner of Police, NSW Police [2005] NSW ADT 5 at 30: "in order for the tribunal to be satisfied that the applicant is a fit and proper person he must be able to demonstrate qualities that would allow the tribunal and the public to have confidence in his honesty, knowledge and capacity in relation to these licences." The Respondent submitted that the Applicant's conduct demonstrated a lack of integrity and a capacity for dishonesty that meant that he was not a fit and proper person within the meaning of the Security Industry Act. 73The Respondent submitted that the tribunal could not rely on the character testimonials provided by the Applicant as it was not clear what exactly the referees understood about the ICAC findings or the Commissioner of Police's decision to revoke Mr McMicking's licence. Public interest 74The Respondent referred to the provision in the SIR, clause 29 which provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it. 75The Respondent relied on the broad notion of "public interest" as set out in Commissioner of Police and Toleafoa [1999] NSWADTAP 9. At paragraph 25 the Appeal Panel stated, dealing with a decision to refuse to issue a security industry licence: "The public interest is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended the public interest discretion to operate in areas to which the character ground was not relevant or, possibly in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 76Public interest embraces standards acknowledged to be "For the good order of society and for the well-being of its members" - see Director of Public Prosecutions v Smith (1991) 1 VR 63.The purpose of public interest in legislation is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision maker's consideration. See Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681. 77The Respondent referred to the matter of O'Neill v Commissioner of Police, New South Wales Police [2005] NSWADT 130 at 37 "The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in. If the licence is granted accordingly, the objects and purposes of the Act are relevant. In this instance the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity." 78The Respondent submitted that even if the tribunal were satisfied with respect to the applicant being fit and proper under section 15(1) of the SIA, the conduct of the Applicant still fails the public interest test. The effect of the Applicant's conduct leads inevitably to the conclusion that is not in the public interest for the tribunal to reinstate the licences subject of the appeal. Findings of fact 79The facts in the matter are not in dispute. ICAC in its report dated 26th of September 2013 found that Mr McMicking had engaged in corrupt conduct. It did not recommend that the DPP consider a prosecution of Mr McMicking under the criminal law. Mr McMicking has no prior record of criminal behaviour. He has qualifications as a locksmith and has held licences in the security industry. He has worked in the security industry for approximately 31 of his 33 professional years. 80Mr McMicking's evidence in his statement before the tribunal dealt with his professional training and experience, his lack of a prior conviction, his family and community life and the hardship that the revocation of his class 2BC security licence had caused him. He did not comment on the factual matters that grounded the finding of corrupt conduct. Nor did he comment on his likely future behaviour were he to be able to continue in the security industry with a 2BC licence. 81The matters of Mr McMicking's likely future behaviour were dealt with by the nine testimonials provided by friends and associates of Mr McMicking. They were not directly put into question by the Respondent. All appeared to have an understanding of the finding of corrupt conduct before ICAC, the revocation of Mr McMicking's class 2BC licence and all expressed the behaviour as being out of character. All of the referees expressed the view that there would be no recurrence of this behaviour were Mr McMicking to regain his licence. Findings on Fact and Law 82The tribunal is satisfied that Mr McMicking's drafting of a false quotation for the tendering process occurred while Mr McMicking was carrying on a "security activity" as defined in section 4 of the SIA - see subsections 4(e), (h) and (i) - set out below. Section 4. Carrying on a "security activity" (1) For the purposes of this Act, a person carries on a "security activity" if the person carries on any one or more of the following activities in the course of conducting a business or in the course of the person's employment: (a) .......... (b) .......... (c) ........... (d)........... (e) selling: (i) any security equipment (other than basic household or automotive security items at approved classes of retail outlets), or (ii) any mechanical, electronic, acoustic or other equipment that the person selling the equipment purports to be equipment that is designed or adapted to provide or enhance security or for the protection of any property, (f).............. (g) ............. (h) providing advice in relation to security equipment (other than basic household or automotive security items at approved classes of retail outlets), including providing product advice in relation to security equipment, (h1) .......... (i) providing advice in relation to any other mechanical, electronic, acoustic or other equipment (other than basic household or automotive security items at approved classes of retail outlets) that the person providing the advice purports to be equipment that is designed or adapted to provide or enhance security or for the protection of any property, ......... 83Providing quotations does not require a licence. The tribunal is satisfied however that Mr McMicking's drafting of a false quotation for the tendering process occurred while Mr McMicking was purporting to exercise his authority under a 2BC licence as set out in section 12 of the SIA. That is the tribunal is satisfied that Mr McMicking was engaged in selling, and providing advice in relation to, security equipment and selling, and providing advice in relation to, security equipment (including electronic security equipment and barrier equipment). 84In drawing these conclusions the tribunal notes that the genuine Kings Security quotes in the process refer to the salesman as being Mr McMicking - picking up the "selling of security equipment" language of section 4 "security activity" definition and section 12, class 2 licences. Mr McMicking's drafting of the "MJH" headed quotes relied on his experience in both advising and selling security equipment - a security activity the authority for which derived from his class 2BC licence. Section 16(3) Corrupt Conduct and 2 step process 85In previous cases the Tribunal has held that corrupt conduct under s.16(3) SIA would at least include any conduct that was defined in the ICAC Act as corrupt conduct - see Waddell v Commissioner of Police, NSW Police Service [2001] NSWADT 112 at para 17. The Tribunal has also held that s. 16(3) of the Act requires the Tribunal to find, firstly, that the person has been involved in corrupt conduct and if such a finding is made, to make a finding whether that person is not suitable to hold a licence because of their corrupt conduct - see Waddell at para 64 and Clugston v Commissioner of Police [1999] NSWADT 112. 86The tribunal is satisfied that Mr McMicking has been found to have engaged in corrupt conduct. In considering whether or not Mr McMicking is then suitable to be the holder of a security licence the tribunal has considered the matters raised by the tribunal in relation to suitability in the matter of Clugston. In that matter the tribunal member considered the circumstances of the corrupt conduct, the former police officer's employment in the police service and the attestations as to his good character. 87This tribunal has considered the circumstances of the corrupt conduct before the tribunal. The tribunal finds that Mr McMicking created two dummy quotes on MJH letterhead provided to him by and at the request of his supervisor Mr Diekman. The tribunal finds that Mr McMicking's actions were specifically within the scope of his 2BC licence in that he was providing advice and sales services in the area of security equipment. ICAC did not determine to refer the matter for consideration of criminal prosecution against him. It appears that in all other respects Mr McMicking's employment with his employer Kings Security has been satisfactory with no other conduct issues raised against him. There were nine attestations to Mr McMicking's conduct being out of character for him from business associates in the security industry and personal friends. In his statement Mr McMicking has said that he has not been subject of any other complaint in his employment. Mr McMicking's employment in the security industry has spanned 33 years and it appears that the ICAC finding of corrupt conduct is the only matter proved against him. 88In these circumstances while the tribunal is satisfied that the corrupt conduct occurred it does not draw the conclusion that Mr McMicking is therefore not suitable to hold a class 2BC licence in the terms of section 16(3) of the SIA. Fit and Proper 89Section (15) (1) (a) of the SIA provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant is not a fit and proper person to hold the class of licence sought by the Applicant. 90The Tribunal has considered the meaning of a "fit and proper person" on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] where he stated: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration". 91It is well established that the discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal [1990] HCA 33; (1990) 170 CLR 321). 92 In Hughes and Vale Pty Ltd at 156-157 Dixon CJ, McTiernan and Webb JJ stated as follows in respect of the exercise of this administrative discretion: "The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve 3 things, honesty knowledge and ability.... It is evident that the commissioner is invested with an authority to accept or reject an Applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion." 93In this matter, the tribunal's understanding of the law in determining whether or not a person is fit and proper to be licensed for a particular activity, is that fitness and propriety is a decision for the decision maker to make objectively on all the evidence both against and in favour of the Applicant - see Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20. 94Fitness and propriety is to be determined in the light of the context of the licence. Fitness and propriety includes the issues of the Applicant's honesty, integrity and ability. The decision maker must take into account the view of a reasonable member of the public in determining whether or not inappropriate conduct would re-occur were the applicant to regain the licence. 95On the basis of these decisions what must be determined is whether, having regard to the corrupt conduct of Mr McMicking as well as the matters cited in his favour, the Commissioner or the Tribunal can be satisfied as to Mr McMicking's honesty, knowledge and ability in performing the tasks that a security industry licence would authorise him to do. 96In the matter of Saadieh, the Deputy President of the Tribunal set out the factors to guide the decision maker in making this determination. Although the matter dealt with the licensing of a taxi driver this tribunal considers the principles apply in considering suitability for licensing in this matter: - see Saadieh v Director General, Department of Transport [1999] NSWADT 68 at 17: "the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the Applicant; the Applicant's driving record; the Applicant's reputation in the community; and the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences." In assessing the last factor, the following considerations are relevant: a) the length of time since the offences were committed and the circumstances in which they were committed; b) whether the Applicant admits responsibility for the offences or complaints and shows genuine remorse; c) the efforts the Applicant has made to rehabilitate himself or herself during that time; d) any change in the Applicant's circumstances such as increased support from friends, family or professional service providers. 97The tribunal has considered these factors in relation to Mr McMicking. There is no doubt that preparing the two dummy quotes knowing that they would be submitted is a serious matter and that it contributes to defeating the purposes of the tendering process to ensure that public monies are spent appropriately. However the ICAC Commissioner determined that Mr McMicking's behaviour should not be referred to the DPP for consideration of prosecution. 98It appears that the matter of corrupt conduct is the only issue of concern in Mr McMicking's 33 years of employment and 31 years in the security industry. Referee Eric Traynor has said that there was no other cause of complaint against Mr McMicking. 99Lucy Flanagan, Glenn Bradley and John Wright are not engaged in the security industry but have attested to Mr McMicking's good reputation. 100All of the referees have said that it is not likely that the conduct would re-occur. Six of the nine referees who were also engaged in the security industry considered that the behaviour was both out of character and unlikely to re-occur. This was echoed by members of the public not involved in the security industry in the references. 101While it is not yet a year since the ICAC findings, it is now four years since the corrupt conduct occurred. There has been no further suggestion of corrupt conduct in this 4 years. It occurred in circumstances where Mr McMicking was asked by his supervisor Mr Diekman to prepare the dummy quotes. 102There was no evidence before the tribunal from Mr McMicking himself of his attitudes to the corrupt conduct or of actions that he would take in the future to avoid becoming engaged in corrupt conduct. The Respondent's Internal Review reasoning does contain a reference to Mr McMicking's submission of 18th November 2013 to the Commissioner. It refers to Mr McMicking's response to his supervisor's request on 4 May 2010 for Mr McMicking to create a quotation on MJH letterhead: "Mr McMicking instructs that he contacted Mr Deikman (sic) as he felt very uncomfortable about being asked to prepare the quotation. Mr McMicking gave evidence that he would never have prepared and sent the quotations unless instructed by his employer, Mr Deikman." 103Colin Finkelde notes in his reference that "the ICAC matters were an event he deeply regrets." John Wright notes that over the past 12 months Mr McMicking had had to reassess priorities and come to terms with the decision and the consequences of his actions. 104All of the referees demonstrated personal support for Mr McMicking. Stephen Green, a client, said that he would continue to use Mr McMicking's services were he to regain his security licence. 105The tribunal considers that the corrupt conduct engaged in by Mr McMicking is very serious. However the tribunal is satisfied that the referees had a sufficient understanding of the ICAC finding and the Commissioner's decision to revoke Mr McMicking's licence prior to providing their references. The tribunal is also persuaded by the character testimonials that such behaviour is unlikely to reoccur should Mr McMicking regain his security industry licence. 106It appears that Mr McMicking's ability as a class 2BC security licence holder has not been placed in question and that it is supported by the 6 industry participant referees. 107Mr McMicking's honesty and integrity have been thrown into grave doubt by the actions founding the finding of corrupt conduct. Since those findings were made by ICAC and the Commissioner reached a decision that Mr McMicking is not fit and proper to hold a security licence, the 9 character testimonials dealing with Mr McMicking's likely future honesty and integrity have been placed before the tribunal. 108In keeping with the tribunal's past approach in Lal's case (see Lal v Director-General, Department of Transport [2001] NSWADT 74), the Tribunal has not taken into account the hardship that cancellation of Mr McMicking's licence has or will cause him and his family in determining his fitness or propriety. 109In the circumstances the tribunal is not satisfied that the Commissioner for Police would now be obliged to revoke McMicking's class 2BC security licence on the grounds that he is not fit and proper to hold the licence. Public Interest 110Section 26 (1) (d) of the SIA and clause 29 of the SIR provide that the Commissioner may revoke a licence if it considers that it is not in the public interest that the person to whom it is granted to continue to hold it. 111The tribunal notes from the decision in the matter of Toleafoa that "public interest" in dealing with security licences includes a very broad set of considerations. The tribunal also understands that even if it is not satisfied that Mr McMicking's licence should be revoked because he is not fit and proper, it might still be revoked on broad public interest grounds - see Commissioner of Police and Toleafoa [1999] NSWADTAP 9 at paragraph 25: "As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended the public interest discretion to operate in areas to which the character ground was not relevant or, possibly in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal." 112The case law offers a range of descriptions of public interest. Public interest embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members' - see Director of Public Prosecutions v Smith (1991) 1 VR 63. 113In Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 at 47, Judicial Member Montgomery analysed the objects of the SIA, and the public interest to be served in exercising the discretion to revoke a licence on public interest grounds: "The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant, that is, the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the Industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6." 114In the matter of Naylor v Commissioner of Police NSW Police Force [2014] NSWCATOD 43, Senior Member Molony referred to the Second Reading Speech accompanying the introduction of the SIA: "On the introduction of the SIA, Mr Gaudry, Parliamentary Secretary, in the NSW Legislative Assembly on 12 November 2002, said at page 6544 of Hansard: "The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security." 115In the matter of Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169, Judicial Member Isenberg said at 57: "The Security Industry Act 1997 was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard: Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11]." 116The tribunal synthesises these considerations of the public interest in this matter as follows. 117Would Mr McMicking demonstrate high standards of integrity and conduct if he continued to hold a class 2BC security licence? 118Will Mr McMicking demonstrate appropriate qualification, competence, integrity and accountability if he continued to hold a class 2BC security licence? 119If Mr McMicking continued to hold a class 2BC licence would this increase the likelihood of criminal activity within the industry? 120If Mr McMicking continued to hold a class 2BC licence would this undermine the maintenance of public order and the safeguarding of community assets, private property and ensuring that public venues are safe? 121In answering these questions should the discretion to revoke Mr McMicking's class 2BC security licence be exercised? 122The tribunal is satisfied of Mr McMicking's competence and qualifications as a class 2BC security licence holder. There is a lack of prior complaint but also positive expressions in relation to his competence by the referees from within in the industry. 123Mr McMicking's behaviour has not demonstrated the integrity and accountability that might have been expected of a security industry licensee - leading to the finding of corrupt conduct. However the tribunal is satisfied that Mr McMicking would likely display integrity and accountability in future as set out by the character testimonials. 124Mr McMicking's corrupt conduct may have undermined public confidence in the tender processes which aim to ensure that the public gets value for money in public expenditure. It may also have caused a loss of confidence in the security industry. However the tribunal is not satisfied that there is evidence that demonstrates that his corrupt conduct has undermined public order or the safeguarding of community assets and private property, nor ensuring that public venues are safe. Further the tribunal considers that there would be a low level of risk to safety and property were Mr McMicking to continue to hold a class 2BC security licence. These last matters go to the objects of the Security Industry Act. 125On the other side of the ledger, Paul Brooks, a security industry practitioner expressed the view in his character testimonial that Mr McMicking had amassed a wealth of knowledge and experience in the security industry and he believed that the community would be significantly worse off if Mr McMicking were unable to execute his duties in a professional capacity. Further, his active participation in the industry would be a constructive reminder to all that high standards must always be maintained. The tribunal accepts this latter proposition. 126Balancing these public interest considerations, the tribunal is not satisfied that Mr McMicking's licence should be revoked on the grounds that it is not in the public interest for Mr McMicking to continue to hold it. Conditional Licence 127Section 21 of the SIA provides for the grant of a conditional licence: (1) The Commissioner may, after considering an application for the grant or renewal of a licence: (a) grant a licence to, or renew the licence of, the person making the application and nominate a place where the person is to collect the licence or renewed licence, or (b) refuse to grant a licence or to renew the licence. (2) A licence confers no right of property and is incapable of being transferred, assigned or mortgaged, charged or otherwise encumbered. (3) A licence is subject: (a) to such conditions as may be imposed by the Commissioner (whether at the time the licence is granted or renewed or at any later time), and (b) to such other conditions as are imposed by this Act or prescribed by the regulations. (4) ............. 128The tribunal received evidence that Mr McMicking had engaged in the corrupt conduct at the request of his supervisor Mr Diekman. His submission to the Commissioner's internal review indicated that he felt uncomfortable about Mr Diekman's request. Nonetheless he has acted on Mr Diekman's instruction. The tribunal has not heard directly from Mr McMicking as to how he might deal with a similar situation in future. 129The tribunal requested that the parties submit a format of suggested conditions which might be attached to any future licence for Mr McMicking. Mr McMicking has provided suggested conditions and the Respondent has rejected these on a number of bases. Conclusion 130The tribunal has determined that the correct and preferable decision is that the Commissioner's decision to revoke Mr McMicking's 2BC licence be set aside. The Tribunal was advised by the parties that Mr McMicking's licence would have expired in the ordinary course of events on 23rd March 2014. He would then have been obliged to apply for a new licence. Had Mr McMicking's licence been ongoing, the Tribunal would have considered it prudent for him to have a conditional licence requiring him to be supervised by a person satisfactory to the Commissioner of Police. In the circumstances of Mr McMicking's licence having already expired there is no utility in making such an order. Decision 131The decision of the Commissioner of Police to revoke Mr McMicking's class 2BC security licence is set aside. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2014